Rick Esenberg, the President and General Counsel for the Wisconsin Institute for Law & Liberty, appeared on the Steve Scaffidi show on WTMJ on Thursday to give a preview of the Wisconsin Supreme Court decision on Friday in McAdams v. Marquette.
“Four things could happen,” Esenberg told Scaffidi. “The Court is sitting six because Justice Annette Ziegler recused herself. The Court could split three to three. That would send the case back to the intermediate court of appeals in Milwaukee to be decided there. The Court could affirm the judgment of the circuit court in favor of Marquette University. The Court could reverse the circuit court judgment in favor of Marquette University and remand the case back for trial. Or the Court could come to the conclusion that summary judgment should have been entered in favor of Dr. McAdams and hold that, and then send the case back for determination of his damages.”
John McAdams was suspended indefinitely by the university in 2014 after a post on his blog, The Marquette Warrior, criticized philosophy instructor and graduate student Cheryl Abbate. In a recorded conversation, Abbate told a student at the Catholic university she would not allow discussion of viewpoints critical of same-sex marriage in her class.
When McAdams’ blog post about the incident went viral, Abbate said she received a number of harassing emails, and McAdams was suspended. Following an investigation, a faculty committee issued a report in January 2016 recommending unpaid suspension for McAdams through the fall 2016 semester.
However, Marquette University President Michael Lovell added extra requirements before McAdams could be reinstated. McAdams refused to comply, effectively ending his employment at Marquette, and he sued the university to get his job back.
A Milwaukee County Circuit Court ruled against McAdams, deferring to the judgment of the faculty committee. Attorneys at the Wisconsin Institute for Law and Liberty (WILL), who are representing McAdams in the case, appealed to the Wisconsin Supreme Court saying Marquette University should not be the sole decider of the meaning of academic freedom in McAdams’ contract as that would render the term “academic freedom” meaningless.
Esenberg also talked about two possible nominees for the U.S. Supreme Court.
“Conventional wisdom says it’s Brett Kavanaugh,” Esenberg said. “But Kavanaugh is being criticized by some more social conservatives, particularly with respect to a decision he made on immigration. He’s being criticized for a decision he made in one of the cases that led up to the Supreme Court decision on Obamacare.”
Esenberg said he thought the criticisms of Kavanaugh are unfair.
“I think Kavanaugh, like everyone on the list, is a very, very solid judicial conservative,” Esenberg said.
Esenberg said President Donald Trump may choose Judge Amy Coney Barrett instead.
“She’s recently confirmed to the Seventh Circuit. She has a very, very short judicial career,” Esenberg said. “Very, very highly regarded. But also I think will probably be the one who generates the most heat in the confirmation process because when she was up for the Seventh Circuit, Democrats really went after her because she is a traditional and faithful Roman Catholic.”
Scaffidi asked Esenberg if it was surprising that Democrats would use a nominee’s religion against her.
“It should surprise me, but it doesn’t,” Esenberg said. “Senator Baldwin is blocking President Trump’s nominee for the Eastern district of Wisconsin because he’s expressed orthodox Catholic views. I would have hoped that we got past this when John Kennedy was elected in 1960, but apparently we haven’t.”